ANAND BAIRAGI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is an appeal preferred by accused/appellant against judgment of conviction and sentence dated 18 -9 -2001 passed by Special Judge, N.D.P.S. Act, Narsinghpur in Special Case No. 9 of 2001. The accused has been found guilty by the Special Judge, N.D.P.S., Narsinghpur under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act of 1985) for being found in possession of 50 grams of opium and has been sentenced to undergo 10 years' RI and to pay fine of Rs. 1,00,000.00, in default, to further undergo two years' RI. The cash amount of Rs. 20.00 seized from the accused has been directed to be confiscated.

(2.) THE accused was found in possession of 50 grams of opium. According to Shri Ajay Mishra, learned Deputy Advcoate General for State, it is valued approximately at Rs. 1000.00. Heard Shri Jagdish Tiwari, learned Senior Counsel for the accused and Shri Ajay Mishra, learned Deputy Advocate General for the State and perused the English translations of the judgment and the evidence submitted by the learned Deputy Advocate General.

(3.) THEREAFTER , I.O. (P.W. 13) proceeded to the place and found that the accused was standing near a temple in front of the Harihar Talkies. I.O. (P.W. 13) called two independent witnesses P.W, 2 and P.W. 3 and surrounded the accused. The accused was informed that he may be in possession of opium. I.O. (5 -W. 13) also informed the accused that if he so wished, his search could be conducted in presence of a gazetted officer or a Magistrate. The accused opted for search in the presence of the Magistrate. The consent memo (Ex. P -5) was prepared. Immediately thereafter, a requisition was sent to Tehsildar (P.W. 1) and Executive Magistrate, Narsinghpur. On request, P.W. 1 arrived and obtained the consent of the accused to search him. In the presence of P.W. 1, I.O. (P.W. 13) conducted the search. A poly bag containing black substance was recovered from the right hand pocket of the pant (trouser) of the accused. Accordingly, search memo (Ex. P -3) was prepared. I.O. (P.W. 13) smelt and tasted the contraband and identified it as opium.